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Ely, Counselor at Law
Category: Immigration Law
Satisfied Customers: 3773
Experience:  Private practice in several areas, including immigration
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If first OPT denied in Aug-2015 and I-94 expired same time,

Customer Question

If first OPT denied in Aug-2015 and I-94 expired same time, Motion to Reopen (I-290B) is filed and continued staying in USA. Motion to Reopen got APPROVED now but OPT (I-765) got denied same day.
Is this MTR processing period is considered unlawful Presence?
Submitted: 8 days ago.
Category: Immigration Law
Expert:  Expert James replied 8 days ago.

Hello! Thank you for using Just Answer. I am James, and I will be assisting you. Please give me some time to review your question. It might take a little while, but I WILL be back to continue this conversation.

Expert:  Expert James replied 8 days ago.

What was the MTR for?

Customer: replied 8 days ago.
OPT (I-765)
Expert:  Expert James replied 8 days ago.

I-765 is not OPT. I-765 is an application for Employment Authorization, based on OPT. And OPT is not a status. If you get OPT, that means you are in F1 status.

So when you filed the MTR, was it for the Employment Authorization? Or was it for F1/OPT status?

And what was denied, the I-765? Or the request for F1/OPT status?

Customer: replied 8 days ago.
It was for Employment Authorization
Customer: replied 8 days ago.
After completion of Masters, I filed I-765 for Employment Authorization in Feb15. But it got denied in August15. Then filed an MTR against the denial decision. Now I got the MTR approved but I-765 denied again. Note: my I-94 expired in Aug15.Question is Am I accruing unlawful presence?I know if MTR is denied, then I am accruing unlawful presence. But here it is MTR approved but benefit denied.
Expert:  Expert James replied 8 days ago.

What you are presenting as the background information is not making sense because it is contradictory.

First you say you applied for Employment Authorization and it was denied. Then you say it was approved but denied. I don't understand.

EAD is not a status. You have to have a status (I-94 should say your status) on which EAD is issued. So approval of EAD doesn't determine if you are out of status.

What status were you in? J-1 of F-1?

Customer: replied 8 days ago.
thank you so much for your reply. You are not the right attorney to talk to. I never learned Law, but understand this better than you, it seems. I will work with some other lawyers.anyway thank you.
Expert:  Expert James replied 8 days ago.

No, I understand the law completely. I've been doing this for 11 years. So please do not insult me.

Immigration terms are a language unto themselves. Each thing you say or phrase you use has a relevant definition. You may not know this, so just attached the documents you are referring to, so I can look at them.

Customer: replied 8 days ago.
I never intent to hurt/insult you.
Expert:  Expert James replied 8 days ago.

Please just attach the documents you received.

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